of pre-emption is abrogated, the ship loses its freight and is liable to confiscation.1

Very important modifications of the Declaration of London are contained in an Order in Council, dated 29th October, 1914, which superseded the Order dated August 29th.

(iii) Notwithstanding the provisions of Article 35 of the said Declaration, conditional contraband shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned "to order," or if the ship's papers do not show who is the consignee of the goods, or if they show a consignee of the goods in territory belonging to or occupied by the enemy.

(iv) In the cases covered by the preceding paragraph (iii), it shall lie upon the owners of the goods to prove that their destination was innocent.

Where it is shown to the satisfaction of one of his Majesty's Principal Secretaries of State that the enemy Government is drawing supplies for its armed forces from or through a neutral country, he may direct that in respect of ships bound for a port in that country, Article 35 of the said Declaration shall not apply. Such direction shall be notified in the London Gazette, and shall operate until the same is withdrawn. So long as such direction is in force, a vessel which is carrying conditional contraband to a port in that country shall not be immune from capture.

These provisions are drastic, but they adopt the principle laid down by the American Prize Court in The Peterhoff above referred to, namely, that "intention" is to be the true test as to whether a ship is liable to capture and not her destination as evidenced by the ship's papers, and, if so, the fact that the cargo be consigned "to order," or show no consignee, constitutes a cogent piece of evidence for drawing the inference that it is "intended for the supply of the enemy."

1 Report on Declaration of London, cited in Int. Law topics, 1908,

The English Government protested against the action of the American Courts, but Lord John Russell, then Foreign Secretary, stated that "he was far from pressing hard on the United States," and declined to put any impediment in the way of the capture of British merchant ships, and declared, in spite of strong remonstrances, that he placed full reliance on the justice of the American Courts.

There has been much calculation as to what is meant by the phrase," a place serving as a base for the armed forces of the enemy," whatever might be the intention of the Conference, as there are no words of limitation defining whether "base" means "base of operations" or "base of supply;" there can be little doubt that the naval officer of a belligerent would give the latter interpretation to the word base, and thus in effect establish a blockade of a belligerent's entire littoral.

That neutral States during the present war suffer severely from the partial interdiction of their commercial intercourse with Northern Europe cannot be questioned, neither can it be questioned that England has exercised with extreme severity her international rights against neutral commerce, but hereon the words of a great jurist, Gentilis, written forty years before the work of Grotius was published, may well be quoted: "Est æquo æquius, et favorabili favorabilius et utile utilius. Lucrum hi commerciorum sibi perire nolunt. Illi nolunt quid fieri quod contra salutem est. Ius commerciorum æquum est et hoc æquius tuendæ salutis, est illum gentium jus, hoc naturæ est, illud privatorum hoc regnorum." We are contending with an enemy who has revived methods of warfare which were all but buried in oblivion, and has applied the inventions of modern science to perpetrate the acts of barbarians, for our enemy it is not a struggle for victory and an honourable peace, but for our subjection and degradation as a State and as a people. Under such circumstances we have a

right to expect that neutral Governments will extend some measure of toleration for any undue strain imposed by us upon the rights of neutrals. It is the good fortune of our enemy that her naval and geographical situation has only in one conspicuous instance permitted her to violate the rights of neutrals, but therein she has outraged rà Távtwv Tŵv äv0pwπŵv vómμa, for by secret engines of destruction, she has made the ocean highways of the world a terror to the peaceful mariner.

L. A. ATHERLEY-Jones.

VII. CURRENT NOTES ON INTERNATIONAL

LAW.

Freight, pro rata itineris.

WHEN, previously to the Declaration of Paris, an

enemy's cargo was captured on board a neutral vessel, the carrier was, as we know, entitled to freight. And she was entitled to her full freight, though she might have performed only a small portion of the voyage. Capture was treated as equivalent to delivery. She had, at any rate, lost her voyage, and the Court would not embark on an inquiry as to her prospects of obtaining another on equally favourable terms. The captors had made a windfall, and they might well be generous, and pay the agreed freight. An inquiry into the actual amount which would be a fair compensation pro rata itineris would be, as Lord Stowell said, an inquiry difficult in execution and uncertain in result.

But the case is different if the voyage is not thus abruptly terminated by the capture of the goods, but becomes illegal through the outbreak of war. If a ship is en route to her enemy's port, she must discontinue her voyage, but it does not follow that she will have full freight for the cargo.

If it be enemy property, it will, if the vessel makes for a home or an allied port, be seized and detained, or confiscated. If it be other property, it will be subject to the usual rights of cargo-owners when a voyage becomes impossible. In the former case, we can see no good reason why the ordinary rule of capture should not prevail, why capture should not be treated as delivery, nor why the owner should not have his full freight. In The Juno, nevertheless, the President referred it to the Registrar and merchants to allow pro rata freight only. Apparently he was not deterred by the difficulties and uncertainties which, according to Lord Stowell, those expert persons would find in their path. The voyage had, unlike that of a neutral ship, become illegal, and the President considered that the owner must take the risk of that among other dangers of the traffic. Of course there are cases in which justice can only be done by allowing pro rata freight. Thus, in The Copenhagen (1799, 1 C. R. 289), Lord Stowell himself allowed it, when a ship was forcibly detained and her cargo sent on. Pro rata freight was originally (Malyne, 98) introduced to meet the case of a disability of the ship which does admit of the contract of carriage being performed somehow, though possibly in too expensive a fashion to be profitable, so that in the interests of all parties, the voyage is treated by express or tacit consent as at an end in the intermediate port. If the ship declined to make any effort to forward the cargo, she was entitled to no freight. If the shipper declined to wait for repairs, or to permit transhipment, so as to enable the shipowner to earn the full freight, he was obliged to pay the full freight. But if the parties. tacitly agreed to treat the voyage as at an end, then the shipowner could claim only a quantum meruit-freight pro rata. This reasoning by no means applies, where the goods cannot lawfully be sent on at all, by whatever vehicle. It is probable, therefore, that the fair and equitable rule should

have been applied in The Juno, which makes the captor liable to reimburse the ship in full, before he indulges himself with the proceeds of his warlike act.

If the goods were not captured, but, being friendly or neutral property, were merely stopped in their transit to Germany in a British ship, the problem would have become more difficult, and would, of course, be one for the Courts of Common law. It would seem that in such a case, since there is no prospect of a very early resumption of traffic, the voyage is at an end. Now freight is not payable if the goods have been taken to a port where the shipper does not want them. One may be clearly of opinion that no freight is due in such circumstances, though it seems equally clear that no damages are due from the shipowner for the failure to carry the goods on. In the case of a British ship, public policy would prevent the recovery of damages: in the case of a neutral ship justifiably deterred from proceeding by the physical dangers of navigation (supposing the charter-party and bills of lading to be governed by English law), The Teutonia ([1872], 3 A. & E. 436), Jackson v. Union Mar. In. Co. ([1874], 10 C. P. 125), and Geipel v. Smith (L. R., 7 Q. B. 404), seem to suggest the same answer. Advance freight might perhaps be retained, under the inequitable principle of Chandler v. Webster ([1904], I K. B. 493).

In the particular case of The Juno (20 Dec. 1914) the goods were (apparently) enemy goods, shipped in Ireland for Amsterdam, but to go to Germany. According to The Jonge Pieter, this was unlawful trade for a British ship -Amsterdam being exactly in the position of Emden in the latter case. The ship put into Swansea, where the cargo was captured. It was referred, as above stated, to fix a pro rata freight; the Registrar being instructed to allow nothing for the delays and inconveniences of war.